Must EU Borders have Doors for Refugees? On the Compatibility of Schengen Visas and Carriers' Sanctions with EU Member States' Obligations to Provide International Protection to Refugees

In: European Journal of Migration and Law
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  • 1 PhD candidate and REFGOV project researcher, funded under the 6th EC Framework Programme on Research and Development (n°CIT3-CT-2005-513420), coordinated by the Centre for Philosophy of Law of the Catholic University of Louvain
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Whereas the EU is developing a highly protective Common European Asylum System in purported compliance with the Geneva Convention, it is also displaying growing reluctance to provide unhindered access to it to those in need. The question of physical access to protection is ambiguously dealt with within EU law. On the one hand, it appears that entry to the Schengen zone has been designed disregarding refugees' entitlement 'to special protection'. Prior to admission, refugees seem to have been assimilated to the broader class of (potentially illegal) immigrants and thus required to submit to general immigration conditions, including visa. On the other hand, some isolated EU law rules give the impression that refugees are to be exonerated from normal admittance requirements.This article intends to show how, 'in the light of present day conditions,' a contextual, dynamic and teleological interpretation of Articles 31 and 33 of the Geneva Convention as well as of Articles 3 ECHR and 2(2) of Protocol 4 ECHR require that the second set of EU rules be appropriately furthered.

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